On May 11th, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 477, Securing Communication of Protected Client Information. This important ethics opinion discusses confidentiality obligations relating to electronic client communications, including e-mail. According to the ABA, an updated opinion was necessary given the evolution of the “role and risks of technology in the practice of law” and the 2012 “technology amendments” to the ABA’s Model Rules of Professional Conduct.
The Opinion states that if a lawyer has “undertaken reasonable efforts to prevent inadvertent or unauthorized access,” a lawyer can generally transmit client information over the Internet without violating the Model Rules. Special security measures may be required, however, by “an agreement with the client or by law, or when the nature of the information requires a higher degree of security.” The Opinion doesn’t define the reasonable efforts lawyers should take to comply with the Model Rules, but offers seven factors to help guide and inform decisions.
You can and should read the entire Opinion here: ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 477 (2017).